#ProtectICWA: Interdisciplinarity and the Impacts of Dobbs on Tribal Sovereignty

When the draft opinion for the Supreme Court case Dobbs v. Jackson Women’s Health Organization was leaked, Justice Alito’s use of the phrase “domestic supply of infants” shocked many Americans for the callous representation of parents as birthing machines.¹ However, for Native American women, including myself, the phrase “domestic supply of infants” was a pointed reminder of the four centuries when Native children and families were torn apart by the American government, through institutions like residential schools and the foster system. The 1978 Indian Child Welfare Act (ICWA) went a long way to protect Native families, and by extension, tribal sovereignty. Unfortunately, ICWA is currently under fire by the Supreme Court. Following a reproductive justice framework, we can understand the connections between the overturning of Roe and the potential overturning of ICWA as affronts to bodily autonomy and family planning. Further, when we look at these two cases from the particular lens of Indigenous history, we can see how federal overreach into family life is nothing new, and that the tandem cases of Dobbs v. Jackson Women’s Health Organization and Brackeen v. Haaland work to erode tribal sovereignty.

The Indian Child Welfare Act was passed in 1978 in response to “nontribal public and private agencies” breaking up Native families and placing Native children into “non-Indian foster and adoptive homes and institutions.”² The disruption of families and forced adoption of children were frequently unwarranted.³ Before ICWA was passed, 25 to 35% of Native children were taken from their homes, and 85% of those children were placed into non-Native homes.⁴ The passage of ICWA was essential for tribes to protect the children enrolled in their nations and maintain their sovereignty. The law protects Native children and tribal sovereignty in four major ways:

1. It mandates that states must recognize tribal jurisdiction over Native children.
2. ICWA establishes minimum federal standards for the removal of Native children.
3. The law provides guidelines for the placement of Native children with extended family or other relations.
4. It puts protections in place to make sure that Native children given up for adoption were truly voluntarily put up for adoption. 

The law was tremendously effective in terms of rectifying the immediate problem, though Native children are still disproportionately removed from their families.⁵

Chillingly, there is a case currently in the Supreme Court that seeks to overturn the ICWA. Shortly before this blog post was published, the Supreme Court started hearing arguments in Brackeen v. Haaland to decide whether ICWA discriminates against Native children by trying to keep them with Native adoptive families and to decide if states’ oversight over child placement is being disrupted.⁶ The plaintiffs argue that they were racially discriminated against because, as a white, non-Native couple, ICWA made it more difficult to adopt their child, thus violating their constitutional rights by discriminating against them on basis of their race. Native nations, including my own tribe, Cherokee Nation, have filed opposition briefs, but it remains to be seen how effective they will be. The racial roots of the plaintiffs’ arguments are concerning for tribal sovereignty because in the United States, being Native American isn’t just a racial or ethnic identity, but a political status as a citizen of tribal nations. If it is ruled that ICWA does contribute to racial discrimination against non-Native people, that provides a platform to strip Native people and Native nations of our unique political identities. 

It is essential to read this case alongside Dobbs v. Jackson Women’s Health Center to discern the enormity of the threats to Native parenthood and tribal sovereignty as currently debated by the Supreme Court. Dobbs, as the higher profile case, is well-known for overturning Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus removing federal protection for abortion and leaving the states to decide for their citizens. Dobbs v. Jackson Women’s Health Center has severely curtailed abortion access, so Native parents will have fewer options to determine the outcome of unwanted pregnancies. Some will be forced to surrender their children for adoption. As of today, adopted children will still be protected as tribal citizens and will be placed into a home with a Native family. However, if Brackeen v. Haaland overturns ICWA, those children will  no longer be protected, and we will return to the days where 1 in every 3 of our children were taken away from our communities. 

The implications for tribal sovereignty are immense. According to Maylinn Smith, “every tribe is one generation away from cultural and political extinction.”⁷ When our children are taken from us, their connections to our communities are severed. Similarly, our ability to bring our traditions and ways of knowing into the future, keeping our culture going, is also severed. When we can’t continue our traditions or add new tribal members to our nations, our tribes are imperiled both culturally and politically.

In recent months, Americans have been outraged by the Supreme Court’s overreach into reproductive and family life. When we read recent Supreme Court cases through an interdisciplinary, humanistic lens, we can fully realize how the Court is a battlefield for reproductive rights broadly, which necessarily and directly shapes Indigenous sovereignty. As a field, legal studies offers a lens to interpret how cases are being argued and what the real-world ramifications of them might be. Further, history can bring us the context for how these cases came to be and why different communities are disproportionately affected by Supreme Court rulings. Native American and Indigenous studies provides yet another layer to the conversation, allowing us to think about different forms of sovereignty and how these current cases fit into Native peoples’ experiences generally. As our chapter of the Berks continues to think about how humanities can help us understand the challenges of our present moment, interdisciplinarity will continue to guide our conversations and the questions we ask.⁸

References:

1.  Samuel Alito, “1st Draft: Supreme Court of the United States Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women’s Health Organization, et al.,” (Supreme Court opinion, POLITICO, 2021), 34.
2.  ^{“The Indian Child Welfare Act of 1978,”NICWA, accessed 9 November 2022. https://www.nicwa.org/wp-content/uploads/2016/11/IndianChildWelfareActof1978.pdf}
3.  ^{“The Indian Child Welfare Act of 1978,”NICWA, accessed 9 November 2022. https://www.nicwa.org/wp-content/uploads/2016/11/IndianChildWelfareActof1978.pdf}
4.  ^{Theodora Simon, “Native Families’ Right to Stay Together is at Stake at the Supreme Court,” ACLU, accessed 9 November 2022. https://www.aclu.org/news/racial-justice/native-families-right-to-stay-together-is-at-stake-at-the-supreme-court.}
5.  ^{“Frequently Asked Questions,” Bureau of Indian Affairs, accessed 9 November 2022. https://www.bia.gov/sites/default/files/dup/assets/bia/ois/raca/pdf/idc1-034295.pdf}
6.  ^{“Brackeen v. Haaland,” SCOTUSblog, accessed 9 November 2022. https://www.scotusblog.com/case-files/cases/brackeen-v-haaland/}
7.  ^{Maylinn Smith, “Where Have All  the Children Gone? When Will They Ever Learn?,” in Facing the Future: The Indian Child Welfare Act at 30, ed. Matthew L.M. Fletcher, Wenona T. Singel, and Kathryn E. Fort (East Lansing, MI: Michigan State University Press, 2009), 245.}
8.  ^{For more on this case, see season two of the This Land podcast. Rebecca Nagle, This Land, produced by Crooked Media, podcast, MP3 audio, https://crooked.com/podcast-series/this-land/#all-episodes.} 
9. ^{Photograph from https://www.indianz.com/News/wp-content/uploads/2022/11/28/StopColonizersProtectICWA-scaled.jpg}